Thursday, August 30, 2012

The Myth of The Poor Man's Copyright (revisited)

I am not in the habit of recycling my blog posts but since this question has been asked of me twice this week, I sense that it is "in the air" here we go:

For the past 15 years, I have taught copyright law at a local college. Every year, without fail, I wind up in an argument with a student over the legitimacy of a so-called “Poor Man’s Copyright.” Folks, the Poor Man’s Copyright does not exist.

However, the myth is so pervasive that many of my students have told me that they were been advised by other professors of the important merits of this method.

Basically, the strategy is this: you take whatever work you have created that you want to protect (song, novel, epic poem, etc.) and mail it to yourself (sometimes the myth suggests certified or registered mail but I am not sure of the distinction for this purpose). The belief is that this somehow proves you created the work. In actuality, this proves that you mailed yourself a package.

The problem lies in a fundamental misunderstanding of copyright law. Our law provides that one’s copyright exists in an expressive work as soon as it is “fixed in a medium of tangible expression” (i.e., this is what creates the actual “copyright.”) The second step is registration of the copyright. Registration is not required to sustain a copyright. It is advisable, though, for purposes of proof AND it is a prerequisite to any sort of copyright infringement litigation. For those purposes, there are no short-cuts or alternatives to copyright registration; one must follow the procedures laid out in the Copyright Act.

I am not sure what the historical background of the Poor Man’s Copyright is. A quick Google search reveals that it is a system recommended to this day in several European countries where there is no central copyright registration authority. It also may date back to the days before the Copyright Act of 1976, when there were legal concepts like “common law copyrights” and other anomalies.

I suppose there is nothing wrong with mailing yourself a package, but please do not rely on that action as any sort of substitute for proper registration.

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